By John V. Berry, Esq. www.berrylegal.com
We often represent federal employees in federal agency initiated administrative investigations. When a federal employee is under investigation or suspects that they may be investigated in regards to misconduct, on or off duty, it is important to have a federal employment attorney represent and/or advise them through the process.
Types of Common Federal Employee Investigations
While it is impossible to cover each and every type of potential misconduct that a federal agency might investigate, some of the most common ones involve:
1. Time Card/Attendance Issues;
2. Misuse of Government Computer;
3. Misuse of Government Credit Card, Vehicle or Travel Card;
4. Discrimination or Harassment;
6. Off-Duty Criminal or Traffic Conduct;
7. Insubordination; and
8. Interference with the Selections Process.
What Typically Occurs During an Federal Employee Investigation
The typical process for a federal employee investigation is that the federal employee is notified (usually with very short notice) that an investigator needs to speak with them. The investigator can be a supervisor, someone from human resources, an agency investigator, an Office of Inspector General or Internal Affairs agent, or others. Misconduct can be investigated by all types of investigators designated by a federal agency.
Generally, a misconduct investigation starts with notice of an interview and very little advice or information about what to expect or rights that are available. Usually, the individual is also not given notice about the subject of the investigation before they arrive. In many cases the federal employee arrives and the investigator just starts asking questions. In other cases, the interviewer may ask that you sign a Garrity statement agreeing to be voluntarily interviewed and waiving all rights in doing so. In other cases, a federal employee may be asked to sign a Kalkines warning, understanding that they are being ordered to speak to investigators under penalty of disciplinary action. I have attached samples of both to this article.
In most cases, it is generally preferred for a federal employee to be ordered to provide a statement if there are potential criminal issues involved. The reason for this is that in cases where a federal employee is not ordered to provide a statement but voluntarily provides one no protections apply. As a result, it is important to have a federal employment lawyer advise and represent a federal employee when they are subject to investigation.
Formats for Federal Employee Investigations
Generally, the most common scenario for a federal employee investigation involves the federal employee being interviewed by 2 investigators. Varying investigative tactics can be used depending on the experience of the investigator. The lengths of these types of investigations vary depending on the issues under review, but generally last between 1 and 3 hours. We have represented federal employees where interviews have last longer. The interviews are usually conducted at the work site or at the offices of the investigator.
Following the interview, many investigators summarize the statements made and attempt to have the federal employee sign an official statement about the information that they have provided. It is important for a federal employee to ensure that investigators do not insert their own versions or characterizations of the statements made into a final written statement signed by a federal employee. It is too often the case that a federal employee may make a statement to an investigator that is taken out of context in the written summation, but which is signed by the employee. That can lead to significant difficulties later on.
How Does Having a Federal Employment Attorney Help?
Having a federal employment lawyer represent and/or advise a federal employee during the investigations process is important. They can advise and/or represent you before, after and often during the investigative interview. It is important to have counsel early because doing so can help prevent or mitigate potential disciplinary action later. Furthermore, it can often help when an investigator knows that you are represented by counsel. In our experience, investigators tend to follow their own rules regarding the investigations process more closely when an individual is represented by a federal employment attorney. Additionally, should the issues involved turn potentially criminal in nature it is important to be represented before the federal employee makes statements about his or her conduct.
We represent federal employees in federal employee investigations. If you need assistance with a federal retirement or an employment issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.